Summer 2013 Regulatory Alert

ABC's Regulatory Alert provides an overview of the federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) and other federal agencies. Below are brief summaries of current issues, as well as links to more detailed information and guidance. If you have any questions, please email regulatory@abc.org.

The U.S. Senate voted July 30 in favor of five presidential nominees to the National Labor Relations Board (NLRB), which included new members Nancy Schiffer (D) and Kent Hirozawa (D), as well as NLRB Chairman Mark Pearce (D), who was reconfirmed. Two Republicans, Harry Johnson III (R) and Philip Miscimarra (R), were also confirmed by voice vote.

With these confirmations, the Board is now fully staffed, meaning it can issue rules and decisions requiring a quorum unencumbered by the legal obstructions that have plagued it over the last two years. Moving forward, there will be a solid pro-union majority on the NLRB prepared to implement the Board's aggressive agenda that was under way before the recess appointment hiatus, albeit with dissenting opinions from the Republicans.
________________________________________

U.S. Supreme Court Will Hear NLRB "Recess" Appointment Case

The U.S. Supreme Court announced June 24 that it will be reviewing a lower court ruling that held President Obama's 2012 "recess" appointments of three members to the NLRB were unconstitutional. The court likely will hear the case this fall.

The original case was brought by Noel Canning, a Washington state bottling company, which argued the president abused his power and undermined the Senate's advice and consent role on nominations when he appointed the Board members. Specifically, Noel Canning challenged an NLRB decision that it must enter into a collective bargaining agreement with a labor union. The company and the ABC-led Coalition for a Democratic Workplace, who intervened in the case, argued the Board did not have a quorum to issue a decision because the recess appointments were invalid.

On Jan. 25, the U.S. Court of Appeals for the D.C. Circuit ruled the president violated the Constitution when he bypassed the Senate to fill NLRB vacancies. On May 16, the U.S. Court of Appeals for the Third Circuit issued another ruling declaring the March 2010 recess appointment of Craig Becker to the NLRB unconstitutional, as well. On July 17, the U.S. Court of Appeals for the Fourth Circuit agreed with the two other courts by ruling that the president violated the Constitution when he bypassed the U.S. Senate to make recess appointments to the NLRB.

The NLRB has petitioned for re-hearings in both courts that struck down its August 2011 "Notification of Employee Rights" rule. Under the rule, employers would have been required to display a poster in their workplace that contained a biased and incomplete list of employee rights under the National Labor Relations Act (NLRA).

A three-judge panel for the D.C. Circuit invalidated the notice posting rule May 7, primarily on the grounds that it violated free speech rights afforded to employers under the NLRA, supporting ABC's arguments. The Fourth Circuit Court ruled June 14 the NLRB exceeded its authority when it adopted the rule but said it did not need to address the free speech issue because the NLRB clearly lacked the authority to promulgate the rule in the first place. The notice posting rule has been under an injunction since April 2012 in response to a request by the ABC-led Coalition for a Democratic Workplace.

COMPLIANCE NOTE: This ruling does not change the compliance requirements for federal contractors under Executive Order 13496 (or its subsequent 2010 implementing regulations) to post a similar notice from the U.S. Department of Labor.
________________________________________

Spring Regulatory Agenda Released and the New U.S. Secretary of Labor Confirmed

The federal regulatory agenda was published July 3, 2013, and lists the actions federal agencies expect to take this year.
To learn more about a specific agency's agenda, please see the related Newsline story:

ABC sent a letter to the newly confirmed Secretary of Labor, Thomas Perez, congratulating him on his confirmation and asking him to consider ABC's concerns regarding DOL initiatives. With a newly confirmed Secretary of Labor, it is expected that there will be a release of DOL regulations that have been held up over the last year. Prominent among them are the "persuader" rule, which affects millions of employers and the Office of Federal Contract Compliance Programs veterans/individuals with disabilities rules, which impose new burdens on government contractors.
________________________________________

OSHA States Unions Can Represent Nonunion Employees During Inspections

OSHA April 5 released an interpretation letter (dated Feb. 21) stating that nonunion employees can authorize an individual "affiliated with a union or a community organization" to act as their representative during agency-sanctioned inspections and other enforcement situations.

The letter, written by OSHA Deputy Assistant Secretary Richard Fairfax in response to a union clarification request, states that employees at worksites without collective bargaining agreements can designate an individual affiliated with a union or community organization to be their "personal representative" in enforcement-related matters during a workplace inspection on OSHA inspection walkarounds.

OSHA's letter also states that "most employee representatives will be employees of the employer being inspected," but adds "there are times when the presence of an employee representative who is not employed by that employer [allows for] a more effective inspection."

ABC considers this letter of interpretation to be highly questionable, as it goes against decades of precedent, and is considering avenues to challenge this interpretation. Members that are confronted by an unwanted union affiliated person requesting to join an inspection may have an avenue to challenge its validity and are encouraged to contact ABC at regulatory@abc.org. ABC will continue to aggressively advocate for our members' interests while monitoring this situation and will provide updates through Newsline as they become available.

For additional information on OSHA's Interpretation Letter and how it can be challenged, click here.
________________________________________

Digger derricks are used by utility contractors to drill and place utility poles and transformers.

The final rule, effective June 28, provides a complete exemption from having to follow the requirements of Subpart CC of the Cranes and Derricks in Construction standard. The digger derricks exemption is part of the Cranes and Derricks in Construction standard that was issued Aug. 9, 2010.
________________________________________

OSHA Issues Final Rule on Cranes and Derricks in Demolition and Underground Construction

On April 23, OSHA issued a final rule that applies the requirements of the August 2010 Cranes and Derricks in Construction standard to demolition and underground work. These areas were inadvertently omitted from the original rule.

The final rule, effective May 23, applies the same crane rules being used in other construction sectors to underground construction and demolition projects. This includes the requirement for operator certification to be completed by Nov. 10, 2014.
For more information on the crane rule, visit OSHA's website.
________________________________________

OSHA Issues Direct Final Rule Updating Standards on Signage

OSHA June 13 issued a direct final rule to update the construction signage standards by adding references to the latest versions of American National Standards Institute (ANSI) consensus standards on specifications for accident prevention signs and tags. The rule retains the existing references to the earlier ANSI standards, which allows employers the option to either comply with the updated or earlier standards.

In March 2012, OSHA revised its Hazard Communication Standard to align it with the United Nations' global chemical labeling system.

The standard will be fully implemented in 2016 and will classify chemicals according to their health and physical hazards, as well as establish consistent labels and safety data sheets for all chemicals made in the United States and imported from abroad. During the transition period, employers may comply with the new standard, the current standard or both.

The first compliance deadline for the revised Hazard Communication Standard is Dec. 1, 2013. At that time, all employers must have trained their workers on the new label elements and the safety data sheets format.

The Federal Motor Carrier Safety Administration's (FMCSA) Hours of Service (HOS) rule, which lowered the total hours a week a truck driver can work from 82 to 70 and implemented a "34-hour restart" requirement, went into effect July 1.

On Aug. 2, in response to legal challenges against the final rule, the U.S. District Court of Appeals for the District of Columbia Circuit issued a decision upholding the HOS rule with one exception, the court struck down the application of the 30-minute break requirement for short-haul drivers with non-commercial drivers licenses (non-CDLs). FMCSA then applied the court's decision to short-haul CDL drivers as well, and announced it would immediately cease enforcement of the 30-minute rest break provision of the HOS rule against short-haul operations. Specifically, the following drivers will be exempt from enforcement of the break rule:

All drivers (CDL and non-CDL) that operate within 100 air-miles of their normal work reporting location and satisfy the time limitations and recordkeeping requirements of 395.1(e)(1).

Non-CDL drivers that operate within a 150 air-mile radius of the location where the driver reports for duty and satisfy the time limitations and recordkeeping requirements of 395.1(e)(2).

FMCSA has also produced a summary of the rule's provisions, as well as guidance. Please note, these resources were issued prior to the Aug. 2 court decision.
________________________________________

DOL and DHS Issue Interim Final Rule on H-2B Wage Methodology

On April 24, the U.S. Departments of Homeland Security (DHS) and Labor (DOL) jointly published an "emergency" interim final rule, effective immediately, on how the wages for temporary non-agricultural H-2B workers should be calculated.

Under the interim final rule, the four-tier wage system is replaced with the average Occupational Employment Statistics (OES) wage. It permits employers to use wages calculated under the Davis-Bacon Act, but does not require such wage rates unless the H-2B workers are working on a federal construction project. The rule also requires union signatories to pay the wage rates stipulated in their respective collective bargaining agreements—a provision that remains unchanged from previous rules.

ABC submitted comments June 9 opposing the interim final rule, stating it will be detrimental to the long-standing success of the H-2B program and its participants—particularly small businesses.
________________________________________

The Office of Federal Contract Compliance Programs (OFCCP) is in the final stages of completing two rules regarding affirmative action and nondiscrimination obligations of federal contractors and subcontractors regarding veterans and individuals with disabilities.

Under Section 503 of the Rehabilitation Act and Section 4212 of the Vietnam Era Veterans' Readjustment Assistance Act, federal contractors and subcontractors are already required to maintain affirmative action and nondiscrimination programs. OFCCP's new rules revise existing procedures, however, by drastically increasing the paperwork burdens on federal contractors in all industries. But most concerning to construction contractors are provisions requiring written documentation and tracking of each contractor's workforce statistics to determine whether the percentage of protected employees meets affirmative action requirements for federal projects.

The Patient Protection and Affordable Care Act (PPACA) mandated that employers with 50 or more full-time equivalent employees offer a certain level of coverage or be subject to new taxes, beginning in 2014. However, on July 2, the Treasury Department issued a blog post that announced a one-year delay of the employer shared responsibility (or employer mandate) tax penalties and information reporting requirements in PPACA. According to the official guidance issued on July 11, no employer shared responsibility payments will be assessed for 2014. Both the information reporting and the employer mandate provisions will be fully effective for 2015.

Please note the transition period for the information reporting and employer mandate provisions has no effect on the effective date or application of other PPACA provisions.

To learn more about the transition period through 2014 for the information reporting and employer mandate provisions, please visit the official guidance.

ABC July 2 submitted comments to the Internal Revenue Service expressing strong concerns regarding the treatment of wellness program incentives under the May 3 proposed regulations related to minimum value of eligible employer-sponsored plans and the health insurance premium tax credit.

Under the proposed rules, employers that offer wellness programs and premium pricing differentials to incentivize participation must assume that employees will fail to satisfy the requirements of the programs when determining minimum value and affordability. The rules permit employers to take into account only the value of the wellness programs designed to prevent or reduce tobacco use.

ABC pointed out that by not appropriately capturing the full value of employer-sponsored wellness programs, many members may be forced to scale back their investment in such plans. ABC strongly encouraged the administration to revise the final rule to account for the full value of all employer-sponsored wellness programs under Internal Revenue Code §4980H.

DOL May 8 issued a technical release containing guidance on a provision in the Patient Protection and Affordable Care Act that requires employers to issue employees a notice of coverage options. This guidance will remain in effect until DOL promulgates regulations or other guidance. Future regulations or other guidance on these issues will provide adequate time to comply with any additional or modified requirements.

The requirement to provide a notice to employees of coverage options applies to employers to which the Fair Labor Standards Act (FLSA) applies. Employers must provide a notice of coverage options to each employee, regardless of plan enrollment status (if applicable) or of part-time or full-time status.

Under the guidance, employers are required to provide the notice to each new employee at the time of hiring beginning Oct. 1, 2013. For 2014, DOL will consider a notice to be provided at the time of hiring if the notice is provided within 14 days of an employee's start date.

With respect to employees that are current employees before Oct. 1, 2013, employers are required to provide the notice no later than Oct. 1, 2013.

DOL has provided model notices for employers that offer health plans to some or all employees and for employers who do not offer a health plan. Employers may use one of these models, as applicable, or a modified version, provided the notice meets the content requirements.

To learn more about DOL's guidance and model notices, visit DOL's website.
________________________________________

Updated Summary of Employer Requirements in PPACA

A reference document provided by Washington Council Ernst & Young offers ABC members a summary of employer requirements in the Patient Protection and Affordable Care Act (PPACA).

Included in the reference document are sections addressing key definitions; tax penalties and other fees; and communication with employees, exchanges and the Internal Revenue Service.

ABC members should remember these slides are meant for educational purposes only and are not intended, and should not be relied upon, as tax or legal advice. Recipients of this document should seek advice based on their particular circumstances from an independent tax advisor or legal counsel.